Grellet v. City of New York

• Citation: 118 A.D.2d 141,504 N.Y.S.2d 671
• Parties: Carman GRELLET, etc., Appellant, v. CITY OF NEW YORK, et al., Respondents.
• Decision Date: 23 June 1986
• Court: New York Supreme Court Appellate Division

Page 671

504 N.Y.S.2d 671

118 A.D.2d 141

Carman GRELLET, etc., Appellant, v. CITY OF NEW YORK, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

June 23, 1986.

Pegalis & Wachsman, P.C., Great Neck (Ellen M. Saunders of counsel), for appellant.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (June A. Witterschein and Marvin R. Kwartler of counsel), for respondents.

Before LAZER J.P., and BRACKEN, NIEHOFF and KOOPER JJ.

BRACKEN, Judge.

In this medical malpractice action, the issue for determination is whether the service of a notice of claim almost 10 years after the date of the alleged malpractice was timely by reason of the tolling provisions for infancy or the continuous treatment doctrine. Because we conclude that the time within which the notice was required to be served was not tolled, we affirm the order of Special Term which dismissed the action.

The infant whose injuries are in issue here was born on July 3, 1970, at the Elmhurst General Hospital which, at that time, was owned by the defendant City of New York and operated through the defendant New York City Health and Hospitals Corporation. Although the plaintiff alleged that the infant's neurological injuries resulted from negligent care and treatment rendered on the date of the delivery, the plaintiff did not serve a notice of claim until February 8, 1980, and the action was thereafter commenced by service of a summons and complaint on or about August 6, 1982. In their answer, the defendants interposed an affirmative defense that the action had not been timely commenced and was barred by the Statute of Limitations.

Following joinder of issue, the defendants moved to dismiss upon the ground that the plaintiff had failed to serve a notice of claim on behalf of the infant within the time prescribed by General Municipal Law § 50-e. The plaintiff opposed the motion and cross-moved for an order dismissing the affirmative defense. In a memorandum decision, Special Term held that the plaintiff's notice of claim had not been timely served, and that the time in which to apply for leave to serve a late notice had expired, thereby requiring dismissal of the action and rendering academic the issue of the Statute of Limitations defense. By order dated May 24, 1984, Special Term granted the defendants' motion to dismiss the action and denied the plaintiff's cross motion.

It is uncontroverted that the alleged malpractice in this case occurred on July 3, 1970, at or about the time of the infant's birth. Thus, pursuant to the provisions of General Municipal Law § 50-e(1)(a) the plaintiff was required to serve her notice of claim within 90 days of that date. Clearly, the service of the notice by the plaintiff on February 8, 1980, almost 10 years later, was untimely, and the action must therefore be dismissed unless the plaintiff establishes that the time for serving the notice was tolled, either by reason of infancy or by virtue of the continuous treatment doctrine.

Prior to its amendment in 1976 (L.1959, ch. 814, amd. by L.1976, ch. 745, § 2), General Municipal Law § 50-e(5) permitted a court, in its discretion, to grant leave to serve a late notice of claim within a "reasonable time" after expiration of the 90-day period, but an application for leave to serve a late notice was required to be made "within the period of one year after the happening of the event upon which the claim [was] based". Moreover, the tolls and extensions prescribed in CPLR article 2, including the tolling provision for infancy (CPLR 208), were inapplicable to this limitation period (Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 261, 434 N.Y.S.2d 138, 414 N.E.2d 639; Matter of Martin v. School Bd. of Union Free School Dist., 301 N.Y. 233, 93 N.E.2d 655; Winter v. City of Niagara Falls, 190 N.Y. 198, 82 N.E. 1101; Soloff v. Board of Educ., 90 A.D.2d 829, 455 N.Y.S.2d 832, lv. denied 59 N.Y.2d 602, 463 N.Y.S.2d 1026, 450 N.E.2d 251; Matter of Soto v. Greenpoint Hosp., 76 A.D.2d 928, 929, 429 N.Y.S.2d 723).

The 1976 amendment to General Municipal Law § 50-e (L.1976, ch. 745, § 2; eff. Sept. 1, 1976) ameliorated the restrictive provisions of the prior statute and rendered the circumstances permitting leave to serve a late notice of claim "far more elastic" (Matter of Beary v. City of Rye, 44 N.Y.2d 398, 407, 406 N.Y.S.2d 9, 377 N.E.2d 453; see also, Hamm v. Memorial Hosp. of Greene County, 99 A.D.2d 638, 472 N.Y.S.2d 189). As amended, the statute retains the prior requirement that the notice be served within 90 days after the claim arises (General Municipal Law § 50-e [1][a] ), but it permits late service of the notice during the "time limited for the commencement of an action by the claimant against the public corporation" (General Municipal Law § 50-e [5] ), i.e., one year and 90 days (General Municipal Law § 50-i; Matter of Beary v. City of Rye, supra, 44 N.Y.2d at p. 408, 406 N.Y.S.2d 9, 377 N.E.2d 453). Moreover, because the period specified in General Municipal Law § 50-e (5) within which a court may permit service of a late notice is completely coextensive with the Statute of Limitations governing an action against the public corporation, the time within which to apply for leave to serve a late notice is subject to the same tolling provisions applicable to the Statute of Limitations, including the tolling provision for infancy (CPLR 208; Cohen v. Pearl Riv. Union Free School Dist., supra, 51 N.Y.2d at p. 259, 434 N.Y.S.2d 138, 414 N.Y.S.2d 639; Yepez v. County of Nassau, 79 A.D.2d 1023, 1024, 435 N.Y.S.2d 51). Thus, an application to extend the time for serving a notice of claim must be made not more than one year and 90 days after the claim arose, unless the Statute of Limitations has been tolled (Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331).

In this case, the plaintiff may not avail herself of the more liberal provisions of the post-1976 statute. The amendment, which became effective on September 1, 1976 (L.1976, ch. 745, § 2), is not applicable to claims which arose more than one year prior to its effective date; such claims "have passed beyond the power of judicial recall" (Matter of Beary v. City of Rye, supra, 44 N.Y.2d at p. 413, 406 N.Y.S.2d 9, 377 N.E.2d 453). Thus, the timeliness of the plaintiff's service of her notice of claim must be determined on the basis of the prior law, which required that an application for leave to serve a late notice of claim be made within one year after the event from which the claim arose, and which was not tolled by infancy. Measured by this standard, the service of a notice of claim on February 8, 1980, was untimely.

Having determined that the plaintiff's time to serve the notice of claim was not tolled by infancy in this case, we must next consider her contention that the service was timely by reason of the continuous treatment doctrine, for it is settled that, in a medical malpractice case, the 90-day period for serving a notice of claim, which runs from the date on which the claim arose (General Municipal Law § 50-e [1][a] ), is tolled by a continuous course of medical treatment relating to the same original condition or complaint (McDermott v. Torre 56 N.Y.2d 399, 407, 452 N.Y.S.2d 351, 437 N.E.2d 1108; Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777; see also, Marabello v. City of New York, 99 A.D.2d 133, 137, 472 N.Y.S.2d 933, appeal dismissed 62 N.Y.2d 942). It is the plaintiff's burden to establish the continuous nature of treatments which take place after the date of the alleged negligence (Barrella v. Richmond Mem. Hosp., 88 A.D.2d 379, 380, 453 N.Y.S.2d 444; see also, Blythe v. City of New York, App.Div., 501 N.Y.S.2d 69; Ferrer v. Methodist Hosp., 101 A.D.2d 806, 475 N.Y.S.2d 136; Brush v. Olivo, 81 A.D.2d 852, 853, 438 N.Y.S.2d 857).

Although the plaintiff now challenges Special Term's application of the continuous treatment doctrine to the infant's treatment history, the facts for the most part are not in dispute. The infant was born at Elmhurst General Hospital on July 3, 1970, and it was on that date that, as the result of the defendants' alleged negligence, she allegedly suffered permanent neurological injury, resulting in mental retardation and cerebral palsy. She was discharged from Elmhurst General Hospital on July 10, 1970, and the hospital's discharge record contained a notation to the effect that no further treatment was needed. During the ensuing 20 months, the infant received periodic outpatient medical care, including treatment for an apparent heart murmur, at Roosevelt Hospital, a private facility, and, during that same period, she was treated on several occasions at the Elmhurst General Hospital emergency room for medical problems that were unrelated to the injuries caused by the alleged malpractice.

On February 29, 1972, the infant was admitted to Roosevelt Hospital for evaluation, and she remained there through March 13, 1972. During her stay at Roosevelt Hospital, the infant was diagnosed, for the first time, as suffering from psychomotor retardation. On March 17, 1972, four days after she had been discharged from Roosevelt Hospital, the infant was seen as an outpatient at the pediatric clinic of Elmhurst General Hospital. Significantly, the purpose of this visit, i.e., for treatment of fever, vomiting and diarrhea, was unrelated to the infant's newly-diagnosed retardation, although the hospital's record of the visit described the infant as "obviously retarded" and contained a suggestion that "perhaps" an ear, nose and throat evaluation should be made in order to assess the 20-month-old infant's speech difficulties.

Following this visit, and during the ensuing eight-year period culminating with the service of a notice of claim on February 8, 1980, the infant made numerous intermittent visits to Elmhurst General Hospital for emergency-room treatment for unrelated injuries and...